22-CV-61883-RUIZ/STRAUSS

United States District Court, Southern District of Florida

Prepared Food Photos, Inc. v. Perry Wings Plus, Inc.

Decided Sep 29, 2023

22-CV-61883-RUIZ/STRAUSS 2023. Id. at ¶¶ 12-13. As a result, Plaintiff filed its

Motion to Compel Post-Judgment Discovery
09-29-2023
Responses (“the Motion”) on June 5, 2023,
PREPARED FOOD PHOTOS, INC., Plaintiff, v. 2 pursuant to Federal Rule of Civil Procedure *2 37,
PERRY WINGS PLUS, INC., seeking an order: (1) compelling Judgment Debtor
Defendant/Judgment Debtor. to respond to the discovery requests, (2) deeming
Judgment Debtor's objections (other than the
Jared M. Strauss United States Magistrate Judge attorney client privilege) waived, and (3) requiring
Judgment Debtor to pay its reasonable
REPORT AND RECOMMENDATION
expenses/fees incurred in making the Motion. Id.
Jared M. Strauss United States Magistrate Judge at ¶¶ 14-15. On June 6, 2023, I entered an order
requiring Judgment Debtor to respond to the
THIS CAUSE is before me upon Plaintiff's ore Motion by June 14, 2023 (“the Order Expediting
tenus motion [DE 50] for a finding of contempt Response”). [DE 26]. Judgement Debtor failed to
against Judgment Debtor, which Plaintiff made respond to the Motion by June 14, 2023, as
during a show cause hearing on September 27, required by the Order Expediting Response. On
2023 [DE 48]. The District Court has referred to June 16, 2023, I entered an order to show cause
me all post-judgment discovery matters pursuant (“the First OTSC”) requiring Judgment Debtor to
to 28 U.S.C. § 636, Federal Rule of Civil show cause by June 23, 2023, why the Motion
Procedure 72, and the Magistrate Rules of the should not be granted by default and why
Local Rules of the Southern District of Florida. sanctions should not be imposed against it under
[DE 24]. Based on the certified facts below, I Rule 37. [DE 28]. In the First OTSC, I warned
respectfully RECOMMEND that the District Judgment Debtor that it may be subject to
Court GRANT the motion and conduct further additional sanctions (including contempt) if it
civil contempt proceedings to ensure Judgment failed to respond. Id. at 2.
Debtor's compliance with the court orders at issue.
On June 23, 2023, Donna Phillips, the sole
FACTUAL BACKGROUND proprietor of Judgment Debtor, conventionally
On December 19, 2022, the Court entered a filed a response to the First OTSC. [DE 31]. In
Default Judgment against Judgment Debtor. [DE that response, Phillips indicated that she intended
16]. On March 22, 2023, Plaintiff served its First to file a motion to vacate the Default Judgment.
Request for Production in Aid of Execution and Id. at 1. Phillips stated that she sought the
First Set of Interrogatories in Aid on Execution on assistance of a pro bono attorney to vacate the
Judgment Debtor. [DE 23 at ¶¶ 1-2]. Judgment Default Judgment, but that pro bono attorney was
Debtor did not respond to the post-judgment unable to finish preparing the motion to vacate due
discovery requests by the due date of April 24, to a death in the family. Id. According to Phillips,
when she received the Motion, she attempted to

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Prepared Food Photos, Inc. v. Perry Wings Plus, Inc. 22-CV-61883-RUIZ/STRAUSS (S.D. Fla. Sep. 29, 2023)

compile the requisite financial documents needed its response to the Second OTSC and appear at the
to respond to Plaintiff's post-judgment discovery show cause hearing. Id. Judgment Debtor did not
requests, but she had been “slow in achieving this” respond to the Second OTSC by July 26, 2023.
due to her health issues. Id. Phillips stated that she
At the in-person show cause hearing on August 2,
is a heart patient with chronic issues and attached
2023, Attorney Neila Nathaniel-Alphonse
various medical documents (all dated June 23,
appeared on behalf of Judgment Debtor.
2023) to her response to corroborate this
Nathaniel-Alphonse stated that Phillips contacted
statement. Id.
her earlier in 2023 to represent her in this matter.
While I was sympathetic to Phillips' health issues, Nathaniel-Alphonse stated that she only does
I found that Judgment Debtor's response did not work on a pro bono basis but that she would take
show good cause to avoid the grant of the Motion. it upon herself to respond to the postjudgment
3 [DE 33]. Thus, I entered an order on *3 June 26, discovery requests on behalf of Phillips and
2023, granting the Motion and requiring Judgment 4 Judgment Debtor. Prior to the show cause *4
Debtor to respond to Plaintiff's postjudgment hearing, Nathaniel-Alphonse sent Plaintiff an
discovery requests by July 5, 2023 (“the Order”). email with some of Judgment Debtor's financial
Id. documents, but Plaintiff was unable to confirm
whether the documents fully complied with its
On July 5, 2023, Judgment Debtor, again through
post-judgment discovery requests. To completely
Phillips, conventionally filed a document titled
respond to the post-judgment discovery requests,
“Response to Order.” [DE 36]. In the document,
Nathaniel-Alphonse represented that Judgment
Phillips stated that she is “unable to respond” for
Debtor would need two weeks. Based on that
the same reasons she indicated in response to the
representation, I ordered Judgment Debtor to
First OTSC: the death in her pro bono attorney's
comply with the Order (and respond to the
family and her health issues. Id. at 1. Phillips also
postjudgment discovery) by August 16, 2023. I
stated the following: “I'd like to ‘beg' the Court to
entered an order memorializing this ruling on
allow 15 days to gain proper representation so that
August 2, 2023. [DE 41].
I could be properly represented in this case.” Id. at
2. On September 6, 2023, Plaintiff filed another
“Notice of Non-Compliance.” [DE 43]. In this
On July 12, 2023, Plaintiff filed a “Notice of Non-
notice, Plaintiff indicated that Judgment Debtor
Compliance” indicating that Judgment Debtor has
failed to respond to the post-judgment discovery
not responded to the discovery requests (by July 5,
requests by August 16, 2023, as previously
2023, or otherwise) as required by the Order. [DE
ordered. Id. As a result of the notice, I entered
37]. On July 13, 2023, I entered another order to
another order to show cause (“Third Order to
show cause (“the Second OTSC”), requiring
Show Cause”) on September 7, 2023. [DE 44]. In
Judgment Debtor to show cause in writing, by July
the Third Order to Show Cause, I ordered
26, 2023, why it should not be sanctioned for its
Judgment Debtor to show cause in writing by
failure to comply with the Order. [DE 38]. In the
September 15, 2023, why it should not be
Second OTSC, I also set a show cause hearing for
sanctioned for its repeated failure to comply with
August 2, 2023, at which Judgment Debtor could
this Court's orders. Id. at 4. I explicitly warned
discuss its failure to comply with the Order and a
Judgment Debtor that its failure to respond or
time period within which it would respond to the
comply with the Third Order to Show Cause may
outstanding postjudgment discovery requests. Id.
result in a recommendation to the District Court
at 3. Because Judgment Debtor is a corporation, I
that it be found in contempt. Id. Judgment Debtor
also ordered that it must obtain counsel to both file

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Prepared Food Photos, Inc. v. Perry Wings Plus, Inc. 22-CV-61883-RUIZ/STRAUSS (S.D. Fla. Sep. 29, 2023)

failed to respond to or otherwise comply with the Plaintiff served the Third Order to Show Cause on
Third Order to Show Cause by September 15, Judgment Debtor by sending it to Nathaniel-
2023. Alphonse by email,1 to Judgment Debtor (care of
its President, Donna Phillips) by mail, and to
Due to Judgement Debtor's failure to comply with
Judgment Debtor (care of Steve C. Lewis, its
the Third Order to Show Cause, I sua sponte
Registered Agent) by Federal Express. [DE 45].
scheduled another show cause hearing for
Plaintiff's counsel represented that, after it served
September 27, 2023. [DE 46]. That order directed
the Third Order to Show Cause, they received an
Judgment Debtor to “be prepared to discuss why it
email from Phillips on September 11, 2023, stating
should not be sanctioned for its repeated failures
“I don't know what that means.” Plaintiff also
to comply with this Court's orders, including, but
served a copy of the order setting the show cause
not limited to, a recommendation to the District
6 hearing for September 27, 2023, *6 on Judgment
Court that Judgment Debtor be held in contempt.”
Debtor by mail, email, and Federal Express.
Id. at 4. The order further reminded Judgment
Plaintiff has received no further communication
Debtor and Phillips that Judgment Debtor must
from Judgment Debtor since the aforementioned
5 obtain counsel *5 to appear in court. Id. The order
email from Phillips.
directed Plaintiff to “be prepared to present
evidence of Judgment Debtor's non-compliance 1 At the August 2, 2023 hearing, Nathaniel-

and recommended sanctions for such non- Alphonse had represented that Plaintiff
compliance, if any.” Id. could communicate with her (on behalf of
Judgment Debtor) by email.
Judgment Debtor failed to appear at the September
27, 2023, show cause hearing. Plaintiff, through Because Judgment Debtor has not furnished
counsel, appeared and made an ore tenus motion Plaintiff with any requested discovery documents,
to hold Judgment Debtor in contempt. In support despite the Order granting Plaintiff's motion to
of its motion, Plaintiff explained that prior to the compel, Plaintiff requested this Court to certify to
August 2, 2023, show cause hearing, Judgment the District Judge that Judgment Debtor
Debtor provided Plaintiff with some unredacted committed acts constituting civil contempt.
financial documents. Before Plaintiff had an
ANALYSIS
opportunity to examine the documents (and, thus,
to determine the extent to which those documents I. Magistrate Judge's Authority Regarding
did or did not fully respond to Plaintiff's request Contempt
for production), the parties came to an agreement
Generally, a magistrate judge may not exercise
whereby Plaintiff would delete the unredacted
contempt power in cases “where the parties have
documents and Judgment Debtor would send over
not consented to magistrate jurisdiction and the act
new redacted versions. However, after Plaintiff
constituting contempt occurred outside the
deleted the unredacted documents, Judgment
magistrate judge's presence.” Campos v. Chavam
Debtor did not deliver any redacted versions to
Enters., Inc., 15-14370-CIV, 2021 WL 1178548,
Plaintiff. Nor has Judgment Debtor provided any
at *2 (S.D. Fla. Feb. 16, 2021), report and
additional documents in response to the request
recommendation adopted, 2:15-CV-14370, 2021
for production or responses to the propounded
WL 1177485 (S.D. Fla. Mar. 29, 2021) (citing 28
interrogatories, either before or after August 16.
U.S.C. § 636(e)). In those cases, a magistrate
Indeed, Plaintiff has received no communications
judge must “certify the facts to a district judge and
from Nathaniel-Alphonse (Judgment Debtor's pro
may serve or cause to be served” upon the alleged
bono counsel) since the August 2 show cause
contemnor an order to show cause before the
hearing.

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Prepared Food Photos, Inc. v. Perry Wings Plus, Inc. 22-CV-61883-RUIZ/STRAUSS (S.D. Fla. Sep. 29, 2023)

District Judge why he or she should not be held in (1983)). “Upon the plaintiff's satisfaction of the
contempt on the basis of the certified facts. 28 initial burden, the burden then shifts to the
U.S.C. §636(e)(6); Brother v. BFP Invs., Ltd., No. defendant to come forward with evidence showing
03-60129-CIV, 2010 WL 2978077, at *1 (S.D. in detail why a contempt finding should not be
Fla. June 1, 2010). This certification “allows the found.” Id.
District Court to render a determination as to
“[T]o avoid contempt, a defendant must show that
whether the moving party has set forth sufficient
he or she either did not violate the court order as
evidence for a finding of contempt.” Lustig v.
alleged or that she was ‘excused' from complying
Stone, 15-20150-CIV, 2017 WL 8889841, at *1
with such order.” Id. A defendant may only be
(S.D. Fla. Dec. 11, 2017), report and
excused from compliance upon a showing that
recommendation adopted, 2018 WL 1870071
“despite all reasonable efforts to comply with the
(S.D. Fla. Jan. 9, 2018). After the magistrate
court's order, compliance was impossible.”
judge's certification, “the District Judge shall hear
Brother, 03-60129-CIV-MARRA, 2010 WL
relevant evidence for a determination if
2978077, at *2. The Eleventh Circuit “construe[s]
punishment is warranted and, if so, then enter an
this requirement strictly.” Combs v. Ryan's Coal
order setting forth such punishment.” Id; 28
Co., Inc., 785 F.2d 970, 984 (11th Cir. 1986).
U.S.C. § 636(e)(6) .
“[T]hus even if the efforts made by defendants are
II. Legal Standard for Granting a Motion for ‘substantial,' ‘diligent' or ‘in good faith,' the fact
7 Contempt *7 that a defendant did not make ‘all reasonable
efforts' to comply with the order, establishes that
“Courts have the inherent power to enforce
8 the defendant has failed to rebut the showing of *8
compliance with their lawful orders by the
contempt.” United States v. D'Argenio, 01-00010-
exercise of contempt powers.” Campos, 15-14370-
CR, 2019 WL 297091, at *8 (S.D. Fla. Jan. 3,
CIV, 2021 WL 1178548, at *2 (citing Citronelle-
2019), report and recommendation adopted, 2019
Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297,
WL 296534 (S.D. Fla. Jan. 23, 2019). A defendant
1301 (11th Cir. 1991)). “On a contempt motion,
must also do more than merely assert that he is
the movant bears the initial burden of proving, by
unable to comply and that he has made all
clear and convincing evidence, the defendant's
reasonable efforts to do so; he must “introduce[]
noncompliance with a court order.” Thomas v.
evidence in support of his claim.” United States v.
Blue Cross Blue Shield Ass'n., 594 F.3d 813, 821
Hayes, 722 F.2d 723, 725 (11th Cir. 1984). “The
(11th Cir. 2010). “This requires proving that (1)
burden shifts back to the moving party only upon
the allegedly violated order was valid and lawful;
a sufficient showing by the alleged contemnor.”
(2) the order was clear and unambiguous; and (3)
Combs, 785 F.2d at 984.
the alleged violator had the ability to comply with
the order.” S.E.C. v. Greenberg, 105 F.Supp.3d III. Certified Facts
1342, 1345 (S.D. Fla. 2015) (quoting Ga. Power
Based on the above facts, I find that Judgment
Co. v. N.L.R.B., 484 F.3d 1288, 1291 (11th Cir.
Debtor failed to comply with five valid orders.
2007)). “To meet the initial burden for a finding of
[DE 26, 33, 41, 44, and 46]. First and foremost,
civil contempt, a moving party need only show
despite multiple opportunities, Judgment Debtor
that defendant failed to comply with the court's
has not provided Plaintiff with any of the
order.” Van De Velde NV v. Felder, 15-24096-CIV,
requested post-judgment discovery documents, in
2017 WL 8895345, at *2 (S.D. Fla. May 25,
contravention of the Court's clear and
2017), report and recommendation adopted, 2017
unambiguous orders at ¶ 33 and DE 41. Judgment
WL 8895340 (S.D. Fla. June 16, 2017) (citing
Debtor's sole attempt to do so led to the
United States v. Rylander, 460 U.S. 752, 755

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Prepared Food Photos, Inc. v. Perry Wings Plus, Inc. 22-CV-61883-RUIZ/STRAUSS (S.D. Fla. Sep. 29, 2023)

inadvertent disclosure of unredacted financial did the representations at the August 2

documents that Plaintiff - in accordance with its show cause hearing demonstrate that such

agreement with Judgment Debtor - deleted without “reasonable efforts” had been made.

reviewing. It is unclear whether those documents

Plaintiff has shown by clear and convincing
provided (and now deleted) adequately responded
evidence Judgment Debtor's noncompliance with a
to Plaintiff's request for production. It is clear,
court order. See Thomas, 594 F.3d at 821. Plaintiff
however, that Judgment Debtor has never
established this through Judgment Debtor's failure
responded to Plaintiff's interrogatories.
to produce the requested discovery documents and
In order to give Judgment Debtor every absence at this Court's most recent show cause
opportunity to resolve this matter, I have issued hearing. My orders were lawful and valid as they
three Orders to Show Cause and held two Show pertained to post-judgment discovery requests, see
Cause hearings. Even charitably assuming that [DE 24], the orders were clear in that they
Phillips' filings and Nathaniel-Alphonse's compelled Judgment Debtor to produce the
representations at the August 2 show cause requested discovery documents by date certain,
hearing were sufficient to avoid a finding of see [DE 33, 41], or file written responses by a date
contempt,2 Judgment Debtor nevertheless clearly certain [DE 26, 44], or appear in court at a date
9 violated the *9 order to provide documents and and time certain. [DE 46]. Judgment Debtor has
interrogatory responses by its own proposed not provided any justifiable reasons as to why it
deadline of August 16, 2023 [DE 41] and failed to could not comply with the orders. See Greenberg,
respond to the Third Order to Show Cause [DE 105 F.Supp.3d at 1345. Because Judgment Debtor
44] to explain that failure. Moreover, although I neither appeared at the show cause hearing nor
provided Judgment Debtor with a final provided any of the requested documents to
opportunity to provide an explanation at the Plaintiff, Judgment Debtor has not met its burden
September 27, 2023, show cause hearing, to show that it has made “all reasonable efforts” to
Judgment Debtor failed to appear, through counsel comply with the Court's orders, and, therefore, has
or otherwise. In hopes of ensuring that Judgment not demonstrated an inability to comply. See
Debtor appeared at the September 27, 2023, show Brother, 2010 WL 2978077, at *2. Thus, I
cause hearing, I ordered Plaintiff to serve recommend that the District Judge find Judgment
Judgment Debtor with the order setting that 10 Debtor in civil contempt *10 and impose a
hearing at least four days prior to the hearing. [DE coercive daily fine of $100 to induce compliance
46 at 4]. Plaintiff filed a certificate of service with the discovery orders.3 See Citronelle-Mobile
certifying it served Judgment Debtor a copy of the Gathering, Inc. v. Watkins, 943 F.2d 1297, 1304
order via email, U.S. mail, and Federal Express. (11th Cir. 1991). Judgment Debtor can purge the
[DE 47]. Notwithstanding these steps, Judgment contempt by responding to and producing all of
Debtor failed to appear at the hearing or produce Plaintiff's requested documents.
any of the requested documents. 3 I have already awarded Plaintiff attorneys'

2 Phillips' representations regarding her fees pursuant to Federal Rule of Civil

health and her attempts to secure pro bono Procedure 37 in the amount of $3,270.00.

counsel do not meet the Eleventh Circuit's [DE 49].

strict standard of showing that Judgment

CONCLUSION
Debtor had made “all reasonable efforts to
comply.” See Combs, 785 F.2d at 984. Nor For the reasons stated above, I respectfully
RECOMMEND that:

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Prepared Food Photos, Inc. v. Perry Wings Plus, Inc. 22-CV-61883-RUIZ/STRAUSS (S.D. Fla. Sep. 29, 2023)

1. The Motion for Contempt [DE 50] be de novo determination by the District Judge of an
GRANTED; issue covered in the Report and shall bar the
parties from attacking on appeal unobjected-to
2. Judgment Debtor be found in civil contempt;
factual and legal conclusions contained in this
and
Report except upon grounds of plain error if
3. A coercive daily fine of $100 be imposed which necessary in the interest of justice. See 28 U.S.C. §
will be purged upon Judgment Debtor's 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149
compliance with the discovery orders. (1985); Henley v. Johnson, 885 F.2d 790, 794
(11th Cir. 1989); 11th Cir. R. 3-1.
The parties will have fourteen (14) days from the
date of being served with a copy of this Report DONE AND SUBMITTED in Fort Lauderdale,
and Recommendation within which to file written Florida, this 29th day of September 2023.
objections, if any, with the Honorable Rodolfo A.
Ruiz, II, United States District Judge. Failure to
timely file objections shall bar the parties from a